Bad Judicial Decision of the Week

by Katherine

Last week it was Boumedienne; this week it's El Masri v. Tenet. Three Fourth Circuit judges unanimously ruled that Khaled el-Masri cannot sue the U.S. government because of the State Secrets Privilege. Here's the best/worst line--not essential to the court's result, but the biggest "what the hell?!" factor:

"By no means do we endorse El-Masri's theory that publicly reported information concerining his alleged rendition is ineligible for protection under the state secrets doctrine simply because it has been published in the news media."

After it restores habeas corpus, Congress needs to pass a law making it clear that the state secrets privilege may not be used to hide evidence of torture, enforced disappearance, and war crimes.

UPDATE: El Masri has an op-ed in the Los Angeles Times.

I did not bring this lawsuit to harm America. I brought the lawsuit because I want to know why America harmed me. I don't understand why the strongest nation on Earth believes that acknowledging a mistake will threaten its security. Isn't it more likely that showing the world that America cannot give justice to an innocent victim of its anti-terror policies will cause harm to America's image and security around the world?....

If I were being treated fairly by the American legal system, perhaps we would not have reached the point where German prosecutors are bringing criminal charges against American citizens.

During my visit in November, many Americans offered me their personal apologies for the brutality that had been perpetrated against me in their name. I saw in their faces the true America, an America that is not held captive by fear of unknown enemies and that understands the strength and power of justice. That is the America that, I hope, one day will see me as a human being — not a state secret.

Comments

[Katherine]

I'm too angry for a coherent legal analysis of the decision, so I reccomend this one.

[Incertus]

That sounds eerily like the argument that, as long as all the rules were followed, all the appeals adjudicated, then proof of a defendant's actual innocence would not be enough to overturn a death penalty. It's often attributed to Scalia, but I've never been able to actually nail down a quote.

[Katherine]

Yep, Scalia's concurrence in Herrera v. Collins:

There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction. In saying that such a right exists, the dissenters apply nothing but their personal opinions to invalidate the rules of more than two thirds of the States, and a Federal Rule of Criminal Procedure for which this Court itself is responsible. If the system that has been in place for 200 years (and remains widely approved) "shocks" the dissenters' consciences, post, at 1, perhaps they should doubt the calibration of their consciences, or, better still, the usefulness of "conscience shocking" as a legal test.

Thomas joined, too.

[Jesurgislac]

You're kidding me.

No, no, you're not.

Scalia and Thomas think it doesn't matter if an innocent person is executed, so long as all the forms of law are correctly followed in executing them?

.....

I really hadn't heard that before.

"By no means do we endorse El-Masri's theory that publicly reported information concerining his alleged rendition is ineligible for protection under the state secrets doctrine simply because it has been published in the news media."

..... guh.

[Hartmut]

You can't believe what's in the news media, it's liberal!
The logic is essentially the same as the frantic re-classification of public documents efforts of this administration (including: we can't tell you the address of the nuclear power plant or the chlorine factory because it could help terrorists).

The legal execution of innocents doctrine has served to keep my blood pressure up sice I first heard it nearly a decade ago.

[dutchmarbel]

Yeah, I heard it quite a few years ago too. At the time I thought it was one idiot, but I remember how shocked I was last year, by this poll:

Three-quarters of Americans believe that an innocent person has been executed within the last five years for a crime he or she did not commit, according to a study in the February issue of Criminology & Public Policy. [cut] Only 68.6% of respondents supported the death penalty among those who believed an innocent person was executed, versus support of 86.9% of the respondents who did not believe any innocent people were executed. When life imprisonment without the possibility of parole is offered as an alternative, less than half of all Americans who believed an innocent person was executed supported the death penalty.

[hilzoy]

Katherine: thanks for writing about this. I was horrified when I read about it, and had been trying to figure out how to manage to write about it given that last week and this have been truly nightmarishly busy.

And that Scalia passage --

-- well, I won't even try to say what I think about that.

[Anderson]

Scalia and Thomas think it doesn't matter if an innocent person is executed, so long as all the forms of law are correctly followed in executing them?

Montaigne reports judges with the same outlook in "Of Experience." So quit thinking of Scalia and Thomas as medieval freaks. They're early-modern freaks.

[George]

Not at all to defend this decsion, nor anything done by the USG in related matters - more, just something I've been thinking lately. To wit, is this really anything new?

Looking past the rhetoric of "freedom", etc, at pretty much any time in US history, some fairly large group of people has been treated pretty badly. I'll skip the litany, and just say that an awful lot of them have been of darker hue. And, I don't see this as just a US thing: all 'great' nations, and many not-so-great, have pretty checkered histories - right up to the present day.

Again, I don't say this makes it right. Maybe it's sort of like a tornado, something that's just has to happen. The particulars are a tragedy, but the pattern is unavoidable.

[Anderson]

Ah, yes, there's something called the "Internet." Florio's translation:

This hath hapned in my time. Certaine men are condemned to death for a murther committed; the sentence, if not pronounced, at least concluded and determined. This done, the Judges are advertised by the Officers of a subalternall Court, not farre-off, that they have certaine prisoners in hold that have directly confessed the foresaid murther, and thereof bring most evident markes and tokens. The question and consultation is now in the former Court, whether for all this they might interrupt or should deferre the execution of the sentence pronounced against the first. They consider the novelty of the example and consequence thereof, and how to reconcile the judgement. They conclude that the condemnation hath passed according unto Law, and therefore the Judges are not subject to repentance. To be short, these miserable Wretches are consecrated to the prescriptions of the Law.

"Sacrificed" is probably the word for Florio's "consecrated.

[Debra Mervant]

Maybe Katherine can explain to us, as I think she is well up on this sort of thing, how Scalia and Thomas fall back on an extremely literalist interpretation (yet, just like reading the Bible...) of constitutional law and jurrisprudence to justify what appears to any normal person as incredibly unfair and perverted ?
Along the same lines are the restrictions that the Anti-Terrorist and Effective Death Penalty Act imposed on appeals, procedural deadlines for filing them, and the increasingly difficulty for federal courts to overturn lower jurisdictions on death penalty cases.

[Debra Mervant]

Correct, should be "yep" not "yet" and of course jurisprudence has one "r". Sorry for being sloppy.

[Hartmut]

Hm, does the word innocence occur anywhere in the US constitution? If this is not the case then a constructionist reading has to discard that concept obviously.

[Hartmut]

Looks like it indeed isn't

[Katherine]

Hartmut--they don't have to, they could read it into the due process clause.

Scalia does say, I think, that surely if the evidence of innocence were really convincing it would lead to a pardon. But we all know that's very far from certain. This is something that right-of-center judges do that I hate: if you are going to pat yourself on the back for your integrity in being true to the so-called original meaning even if it leads to horrible consequences for innocent people, at least take responsibility for those consequences.

There was another recent case where the D.C. Circuit decided that it had jurisdiction to order the U.S. military not to transfer a U.S. citizen to Iraqi custody. One of the prisoner's claims was that as a Sunni he would face torture in an Iraqi prison. Judge Janice Rogers Brown's dissent included this line:

I do not make light of Omar’s assertion he will receive severe treatment as a result of Iraqi detention. To recognize that our courts lack the authority to dictate the actions of a foreign sovereign is not to sanction human rights violations. As part of a tripartite system of government, we need not assume the political branches are oblivious to these concerns. Indeed, the other branches possess significant diplomatic tools and leverage the judiciary lacks.

We know damn well that the executive branch is oblivious to these concerns. If you're going to abdicate, just abdicate, don't cover yourself in excuses and false statements about what the executive is likely to do.

[Lesly]

It's the Fourth Circuit. According to D'souza this ruling is the subconscious equivallent of a wink and a nod to oppressive conservative regimes in the Middle East.

[Hartmut]

Hartmut--they don't have to, they could read it into the due process clause. [Katherine]

Obviously the irony/sarcasm font is indispensable :-(

Of course due process is in the constitution but the most extreme "constructionists" have proven that they are willing to deny everything that is not spelled explicitly and discuss away everything that is, if it doesn't fit their views/agenda*.

Don't you know that "reading into" is the most deadly/mortal/unforgivable sin there is for "strict constructionists"?
Btw, the constitution doesn't explicitly has a right to breathe air[/H2SO4]

*Remember the Attorney General arguing that the constitution doesn't have an explicit right of habeas corpus because it only forbids the taking away of it [aka known as the 'you must have horns because you haven't lost any' argument from medieval scholastics] ?!

[Nell]

{sigh.}

I weep for "my" circuit's role in history. Again.

[hilzoy]

OT: I was just eating lunch, and flipped on CNN, and saw Obama's speech in Selma. It is very, very worth watching. Very. Very.

What's odd is that he is not, in some standard way, a "good speaker". It's what he says, and the force of his personality, that carries his speeches, despite the fact that when he pauses he says 'uhhh' in an awkward sort of way.

I am also always struck by how well he understands the difference between talking about something and doing it. In this case, between talking about connections to the civil rights movement and actually inhabiting that movement. Elsewhere, between talking about values and displaying them.

This is what let him do the most striking thing in the speech, which was to talk not just about discrimination, government action, etc., but also about the responsibilities of the black community, and of individuals. Which makes perfect sense once you think about it -- as he said, the civil rights movement was all about assuming responsibility and making your own way in the face of injustice -- but it was still an astonishing thing to carry off, I think successfully.

[hilzoy]

CSPAN will be broadcasting Obama's and Clinton's speeches in Selma, and one of Edwards' somewhere else, at 6:30 (they list them in that order, which I assume means they'll be broadcast in that order.)

Worth watching. -- I mean: to me, watching entire speeches or press conferences is usually miles more illuminating than watching whatever snippet the networks choose to share with us. If you want to get a feel for a person, that's the way (imho.) But this is especially worth watching.

[matttbastard]

Hil: I also saw the Obama speech and was floored at the effortless manner in which he connected with his audience. 'The Joshua generation' was brilliant rhetoric that didn't feel like mere rhetoric. In contrast, Clinton's speech came across as forced, strangely dated - politics as usual. (Unlike Obama's, her religious allusions came across, to me at least, as awkward and unnatural, tacked on to score brownie points with the bible-bumpers).

Forget policy or ideology; thus far, on a purely personal, superficial level, I find Obama to be the most likable--and presidential--of all the candidates, Democratic or Republican.

[CharleyCarp]

An annoying decision. One hopes that the SC will take this, and clarify that n.26 in Reynolds, which essentially re-affirms Totten, is a very steep hill to climb.

Hey, how come the US has a state secret privilege for conduct it undertook abroad? Shouldn't if have to prove that it had this privilege in 1789? Otherwise, isn't it limited to privileges for conduct within its sovereign territory? [/snark]

[Nell]

on a purely personal, superficial level, I find Obama to be the most likable--and presidential--of all the candidates, Democratic or Republican.

As an Obama-resister, I'm finding the same thing. The clip that's been circulating, of him talking about Iraq in a November 2002 interview, is very winning.

He's going with public financing, too. Brave.

[Nell]

'public financing' meaning the public matching funds (which Clinton and Edwards have already announced they'll opt out of)

And now back to the main topic of the thread: Does anyone know what legislation, if any, has been introduced in the new Congress to stop renditions?

[wonkie]

I am struck by thhe contrast between two recent political events: thhe liberals go to Selma to celebrate the people and the accomplishments of thhe Civil Rights Movemment and thhe conservatives to to a conference to listen to keynote speaker Ann Coulter (and some just-turned-coonservattive-yesterday politicianns) and to celebrate no accomplishments since mostly the theme seemed to be that they wanted Ronnie back, but not thhe real Ronnie, just the imaginary onne who didnn't bust the budget, sell thhe government to thhe highest bidder, or abuse power.

Which got me thinking: if conservtives were going to gather at a place to remember and celebrate an historical event which they see as an accomplishment of their movement, what would the historical event be?

BTW my definition of conservative is people who call thhemselves that.

[Bernard Yomtov]

I read the decision and found it not only disheartening, but puzzling as well.

Unless I misunderstood, the court said, among other things, that the problem was not establishing the existence of the rendition program, or that El Masri had been subjected to it, or possibly even that he had been tortured, but with identifying the specific responsible parties and procedures used.

In other words, the state secrets involved did not relate to what happened to El Masri, but to who did it and how it was authorized and who carried it out.

Further, the court reviewed classified documents provided by the government in support of the privilege. Presumably these documents describe some of these things.

So we have a situation where the court has a pretty good idea what happened and how, and where there seems to be not a lot of doubt concerning the basics, at least, of El Masri's story. Yet somehow it is not possible for him to obtain redress through the judicial system. This is insane.

I refuse to believe that it is beyond human capability to design a proceeding which both protects government secrets and gives El Masri a hearing. I cannot understand how a court which most likely has very good reason to believe his allegations can simply deny him access.

[Katherine]

I don't understand it Bernard. I don't see how their logic wouldn't apply equally if the CIA was runnning a highly classified death camp.

[hilzoy]

Nell: if I am any judge of character at all, Obama is the real deal. So why resist? ;)

[russell]

After it restores habeas corpus, Congress needs to pass a law making it clear that the state secrets privilege may not be used to hide evidence of torture, enforced disappearance, and war crimes.

I will go further than this. In addition to all of the above, the folks who have violated habeas and our own laws against torture, enforced disappearance, and war crimes should be exposed, tried, and if found guilty, sent to jail. No exceptions.

I won't even try to say what I think about that.

That is because you are the generous soul of comity, which is one of the many things that make participating here a pleasure.

I, however, am not such a generous guy, so I'm happy to share what I think about that.

Justice Scalia's, and to lesser degree Justice Thomas', application of their theories of originalism are a blight on the judiciary. Justice Scalia's open contempt for folks who disagree with him shames and degrades the court and the nation.

This is insane.

Yes, it is the detached, disembodied, bureaucratic insanity intuited by Kafka, made manifest in our time, by our own nation and government.

The form of the law has been preserved, perhaps, but it's heart has been cut out and replaced with something farcical.

Thanks -

[hilzoy]

russell: it's not my generous-soul-of-comity-hood that got in the way of my saying what I thought; it's that this time, words literally did fail.

(But thanks ;) )

[CharleyCarp]

Katherine, it doesn't have to be 'highly classified.' Just 'secret.' The principle here is totally outrageous, and I won't be surprised if the government reaps something of a whirlwind on this.

The smartest thing they could do right now, IMO, is find a sum of money for which Mr. El Masri would drop his suit.

[liberal japonicus]

It seems to me (from my non-lawyer's perch) that what underlies all of this Scalia talk is the belief that acknowledging one made a mistake means that the respect for the institution diminishes, so therefore, one has to break a few eggs to get the omelette of justice. I completely and totally disagree, but I am wondering what logical argument can be given to address that as it seems that arguing that acknowledging errors makes one stronger in terms of the respect on receives is less logic and more axiom.

Playing devil's advocate, I can understand the logic underpinning the refusal to vacate convictions because that logic is taken to such extreme lengths here in Japan. Here's a link to one of the sadly many examples of such cases here in Japan. A brief excerpt:

Despite the lack of evidence presented by prosecutors, the second criminal division overturned the 2005 decision to grant a retrial. Nonetheless, the ruling said there was sufficient possibility "that pesticide possessed by Okunishi may have been used." Given that a man's life is at stake, this explanation was unacceptably vague.

The court also threw out evidence provided by the defense team that the pesticide used in the crime was different from that possessed by Okunishi. Its rationale was that the possibility still remained.

This court made a decision that legitimizes the refusal to grant a retrial unless the defense team first proves the defendant is innocent. This line of thinking means that it will be impossible to address false accusations in the future.

The decision ignored the fact that the defendant was the subject of an overbearing investigation, and concluded he confessed "of his own volition."

The ruling said it is "unthinkable that he would voluntarily make a false confession in a serious crime for which he may receive the death sentence." Thus, the court decided his confession is "credible."

There is a notion of the nature of japanese society that underpins this, which is why it is probably more developed here and why Scalia seems like such an outlier.

[Nell]

The smartest thing they could do right now, IMO, is find a sum of money for which Mr. El Masri would drop his suit.

I hope that, no matter what the sum, Mr. El-Masri spits on the offer. This outrageous refusal to take responsibility deserves to reap the whirlwind.

[Anderson]

The smartest thing they could do right now, IMO, is find a sum of money for which Mr. El Masri would drop his suit.

That's their usual M.O., isn't it? I would think they'd be very reluctant to let the SCOTUS decide this one on the merits.

[Bernard Yomtov]

The smartest thing they could do right now, IMO, is find a sum of money for which Mr. El Masri would drop his suit.

Smart or not, I don't think it will happen. After all, if it's smart now it would have been even smarter before a suit was filed, or right afterwards. What's changed to make this more likely?

[Nell]

The NYTimes editorial may misses the point here:
After it restores habeas corpus, Congress needs to pass a law making it clear that the state secrets privilege may not be used to hide evidence of torture, enforced disappearance, and war crimes.

The 4th Circuit judges' use of the state secrets privilege seems to rest on their view that these hideous practices are not crimes. As the analysis Katherine linked to in the first comment puts it:

The only imaginable way that an investigation into Tenet's liability might be invasive, and so risk state secrets, is if the program he approved were legal or the harm to El-Masri were not foreseeable, in which case it would be necessary to disclose the details of the program in order to judge whether or not Tenet should be responsible for what happened to El-Masri. Is such a defense really possible? Is it really possible that our government can officially, regularly, and secretly seize people without any arrest or other judicial approval, imprison them, and abuse them without violating any law?

'Yes', say the 4th Circuit judges. I hope to hell those of you who express confidence that the Supreme Court will answer this question in the negative are right. I'm less confident.

[dmbeaster]

The state secret's doctrine is entirely out of control. It has become the procedural mechanism for a new kind of star chamber.

Priviliged judges read the government's "secret evidence" and decide whether or not the plaintiff should be allowed to go forward. They have the audacity to refer to the "alleged rendition" as if there is an uncertainty about this. It does not matter that the basic events are no longer "secret" (please note that the wiretapping case reached the opposite conclusion -- that public admission of the existence of the program rendered the doctrine irrelevant since relief could be predicated on the now publicly available evidence).

If only it were just something out of Kafka -- then it would make sense.
___________________

Re Scalia and Herrera:

Not to defend the monster, but the legal problem presented in that case is a tough one -- what should be the procedures for dealing with newly discovered evidence after a conviction. The more particular concern is what should the role of habeas relief be in such a circumstance -- not easy questions.

Naturally, he uses the opportunity to vent needlessly that there is no constitutional right to have newly discovered evidence considered at all. This is both sickening and plainly wrong. As Katherine noted above, what about the due process clause? That provision mandates as a matter of constitutional law that certain bare minimums be followed with regard to procedure -- Scalia is basically arguing that a judicial system that completely forbade any consideration after conviction of newly discovered evidence would be consistent with due process.

To paraphrase Scalia's reasoning in such a case -- "so what? let the executive worry about it!"

[CharleyCarp]

What's changed to make this more likely?

A favorable opinion in the Circuit is worth a lot. Obviously not as much as a favorable opinion in the SC, but there's much risk in moving ahead. Once cert is granted (if it is granted) the required sum will increase.

We can all hope that Mr. El Masri would hold out, but he has himself and his family to think about, and the development of American law isn't and shouldn't be very high on his list of priorities.

[Bernard Yomtov]

Charley,

A favorable opinion in the Circuit is worth a lot.

I'm missing something. What favorable opinion? Are you saying you think that the entire court will decide differently than the three-judge panel?

[Katherine]

I think he's saying that losing at the Circuit might make El-Masri more willing to settle...

I wouldn't know, but I suspect that the Bush administration hasn't made a serious settlement offer. Too much of an admission of error. I hope we can count on the Supreme Court on this, but who knows how many times we can count on Kennedy rising to the occasion. This isn't like Boumediene where they are all but guaranteed to take the case, and where the previous decisions in Rasul and Hamdan give specific reason for confidence.

If I remember correctly, El-Masri was on the bus in Macedonia he got kidnapped out of in the first place because of financial problems & the marital stress they were creating. I can't imagine being sent to the Salt Pit improved his situation. I wouldn't blame him at all for settling, but I don't think it's actually so likely that the gov't will offer.

[Slartibartfast]

Side 1:

By no means do we endorse El-Masri's theory that publicly reported information concerining his alleged rendition is ineligible for protection under the state secrets doctrine simply because it has been published in the news media.

Technically, that which is classified does not automatically become declassified once it comes out in the media. I actually agree with this as policy, and agree with it (for different reasons) as part of the rules for handling classified information: classified information is declassified only at the command of the cognizant classification authority, not because of some newspaper article.

Side 2:

Side 1 having been played, this seems to me to be a fairly clear violation of the rules against classifying things because having them come out in the media might be detrimental to...well, to public image. "National security" and "national embarrassment" are not interchangeable.

[CharleyCarp]

Sorry to be unclear. The government has as good a decision as it can ever get. Even if it wins in the SC, the result is likely to be less clear, less favorable, or both. The question, from the government's perspective, is what's the risk of reversal worth.

One thing we know about this crowd, though, is that they are gamblers.

[dmbeaster]

Slarti:

Technically, that which is classified does not automatically become declassified once it comes out in the media.

The legal doctrine is not strictly a matter of classification/declassification. You are clearly correct on this point, but the legal question is different.

Although exactly what the legal test is anymore is very hard to tell. It's been abused to such an extent to date. For example, in the NSA domestic wiretapping cases, the government is arguing s-tate secrets in order to prevent judicial scrutiny of its "alleged" illegal conduct, and even though the existence of the program is publicly acknowledged.

[Slartibartfast]

The legal doctrine is not strictly a matter of classification/declassification.

It appeared to be, to me. El Masri seemed to argue that the information was already in the public domain, hence: not classified, and not classifiable.

Coule be my shoddy reading skills, though. In either case, if you can briefly walk me what you're talking about, I'd be appreciative.

[Anderson]

Even if it wins in the SC, the result is likely to be less clear, less favorable, or both. The question, from the government's perspective, is what's the risk of reversal worth.

And to further clarify for non-lawyers, if the case settles, then the 4th Circuit's panel decision presumably remains binding on all federal courts *in that circuit*. That gives the feds an incentive to stop the ball rolling up to the SCOTUS.